ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-30000023
DATE: 20121212

BETWEEN:

HER MAJESTY THE QUEEN – and – D.C. Applicant/Accused

S. Akhtar and M. Petrie , for the Crown

B. Cunningham , for the Applicant/Accused K. Steward , for the Third Party Complainant

HEARD: November 15, 28, 2012

CROLL J.

THIRD PARTY RECORDS APPLICATION

[ 1 ] I have today provided oral reasons on Stage 2 of the Third Party Records Application in this matter. Set out below are my reasons on the Stage 1 determination, delivered orally on November 28, 2012, followed by the ruling made today at Stage 2.

Reasons on Stage 1 of Application

[ 2 ] The Applicant D.C. is charged with four historic sexual offences, namely, 1) gross indecency between January 1, 1980 and December 31, 1987; 2) indecent assault between January 1, 1980 and January 3, 1983; 3) sexual assault between January 4, 1983 and September 17, 1984; and 4) sexual assault between September 18, 1984 and December 31, 1987. The Complainant on all counts is C.K., who was the nephew of the Applicant at the time of the alleged offences. The Complainant is now female.

[ 3 ] Pursuant to s. 278.3 of the Criminal Code , R.S.C. 1985, c. C-46, the Applicant seeks production of the following records relating to the Complainant:

(a) All records held by the Clarke Institute of Psychiatry (the “Clarke Institute”);

(b) All records held by East Metro Youth Services, including those held by Galloway After School Program;

(c) All records held by the Hospital for Sick Children;

(d) All records held by the Ontario Disability Support Program (“ODSP”);

(e) All records held by Canada Pension Plan (“CPP”);

(f) All records held by Sherbourne Health Centre; and

(g) All records held by Albany Medical Clinic.

[ 4 ] While s. 278.3(1) of the Criminal Code provides that these types of applications must be made to “the judge before whom the accused is to be, or is being, tried”, all counsel have agreed to be bound by my ruling, regardless of whether I am the trial judge.

[ 5 ] Sections 278.1 to 278.9 of the Criminal Code set out the regime that governs the disclosure of third party records in the context of a sexual offence. This is a two-stage process. The first stage of the procedure is to determine whether the records sought are likely relevant to an issue at trial, or to the competence of a witness to testify, and whether production is necessary in the interests of justice (278.5(1)).

[ 6 ] In R. v. O’Connor , 1995 51 (SCC) , [1995] 4 S.C.R. 411 , at para. 22 , the Supreme Court of Canada indicated that likely relevance was a higher threshold than whether the information may be useful to the defence. The court stated that the information sought must be logically probative to an issue at trial, which includes evidence relating to the credibility of witnesses and the reliability of other evidence. The court went on to note, at para. 29, that records may be relevant if

(i) they may contain information concerning the unfolding of events underlying the criminal complaint,

(ii) they may reveal the use of a therapy which influenced the complainant’s memory of the alleged events, or

(iii) they may contain information that bears on the complainant’s credibility, including testimonial factors, such as the quality of the complainant’s perception of the events at the time of the offence and his or her memory since.

[ 7 ] Section 278.3(4) sets out a list of assertions that cannot, on their own, establish likely relevance. These are:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j ) that the record relates to the complainant’s sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

[ 8 ] Even where records are likely relevant, production should only be ordered if it is necessary in the interests of justice. It is this legal framework that must be applied to the Applicant’s assertion of likely relevance.

[ 9 ] The Applicant’s position is that the Complainant’s records are likely relevant to an issue at trial and to the credibility and reliability of the Complainant, and are required in order to make full answer and defence. In particular, the Applicant submits that the records are likely relevant to the following issues:

1. Whether the Applicant was the cause of the Complainant’s nervous breakdowns and other mental health issues; and

2. To inform the court as to the unfolding of events, given the Complainant’s current memory problems.

[ 10 ] While the Applicant’s factum also indicated that the records sought are likely relevant to whether therapy, including electroshock therapy, had an influence on the Complainant’s memory, and, if so, to what extent, this argument was not pursued during the hearing of the application.

[ 11 ] Throughout her evidence at the preliminary inquiry, the Complainant repeatedly stated that the Applicant was the sole cause of her mental health issues, and denied having any mental illness that predates the alleged offences. The Applicant submits that the information sought is likely relevant as it will enable him to challenge the Complainant’s credibility. In particular, the Applicant notes that this case rests largely on the credibility of the Complainant and the reliability of her evidence.

[ 12 ] I am mindful of the Ontario Court of Appeal decision, R. v. Batte (2000), 2000 5751 (ON CA) , 49 O.R. (3d) 321 (C.A.) , where Doherty J.A. stated as follows, at para. 71:

It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainant’s allegation of abuse. In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant’s credibility.

[ 13 ] Nonetheless, I do not consider this case to be one where the Applicant is asserting likely relevance on the “mere fact” of speaking to a counsellor or therapist. In R. v. Karounos , 2010 ONSC 6504, [2010] O.J. No. 5090 , the Complainant indicated that the panic attacks she had were a direct result of the alleged sexual assaults. In determining the likely relevance of the Complainant’s counselling records in that case, the court stated, at para. 8, “Whether or not that information was relayed in a timely manner to anyone, particularly a counsellor treating the panic attacks, would be of great consequence to an accused.” Similarly, I am of the view that whether or not the Complainant in this case relayed to a third party professional that her mental health issues flowed from the Applicant’s conduct would be significant for this Applicant’s case. That said, there must be an evidentiary foundation to suggest that the records may disclose this information. I will return to this question and the issue of timeliness when I address the specific records sought.

[ 14 ] The Applicant further submits that given the Complainant’s memory problems, disclosure of the records sought would be likely relevant in determining the unfolding of events. There are clearly gaps in the Complainant’s recollection and in particular, uncertainties as to when specific incidents occurred. The fact that the Complainant repeatedly stated at both the June 8, 2010 and November 1, 2011 preliminary inquiries that she has blocked things out or has been trying to block things out is significant. However, as L’Heureux-Dubé J. cautioned in R. v. Osolin , 1993 54 (SCC) , [1993] 4 S.C.R. 595 , at pp. 622-623 , which was adopted in O’Connor , at para. 109 :

[M]edical records concerning statements made in the course of therapy are both hearsay and inherently problematic as regards reliability. A witness’s concerns expressed in the course of therapy after the fact, even assuming they are correctly understood and reliably noted, cannot be equated with evidence given in the course of a trial. Both the context in which the statements are made and the expectations of the parties are entirely different. In a trial, a witness is sworn to testify as to the particular events in issue. By contrast, in therapy an entire spectrum of factors such as personal history, thoughts, emotions as well as particular acts may inform the dialogue between therapist and patient. Thus, there is serious risk that such statements could be taken piecemeal out of the context in which they were made to provide a foundation for entirely unwarranted inferences by the trier of fact.

[ 15 ] I turn now to the specific records sought and their likely relevance with respect to the credibility of the Complainant, reliability of her evidence, and the unfolding of events.

Records held by the Clarke Institute of Psychiatry

[ 16 ] The Complainant is currently 42 years old, and at the time of the various offences, was between nine and 17 years old. The Complainant testified at the June 8, 2010 preliminary inquiry that the she has been going to the Clarke Institute for a long time, approximately 20 years, which places the start of her attendance there at around age 19. Her evidence was that she revealed the alleged assaults to the staff at the Clarke Institute and that she may or may not have seen a worker there when her father died in 2003.

[ 17 ] In my view, the timing of the Complainant’s attendance at the Clarke Institute negates the temporal connection which was significant in Korounos , where the court noted that because the Complainant had admitted to receiving counselling around the relevant time, there was a close temporal connection between the creation of the records requested and the date of the alleged commission of the offence. In this case, the records from the Complainant’s attendances at the Clarke Institute, over a period of some two to 24 years after the alleged incidents ended , would not, in my view, reliably fill in any gaps in her account of what occurred. When this gap of time is considered, along with the fact that there is no evidence to suggest that when undergoing counselling at the Clarke Institute, the Complainant attributed her issues to the Applicant, I am not persuaded of the likely relevance of these records with respect to the credibility of the Complainant.

Records held by the East Metro Youth Services (including those held by Galloway After School Program)

[ 18 ] The Complainant testified that she attended the Galloway After School Program intermittently from approximately 1981 to 1987, and that her social worker there was Susan Musselman. At the hearing of this application, the Crown Attorney advised that Ms. Musselman has provided a statement that is largely consistent with the evidence of the Complainant. As such, I am of the view that any likely relevance in these records can be elicited through the evidence of Ms Musselman. I return to Batte , where Doherty J.A. stated, at para. 72:

I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant’s credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value.

Records held by the Hospital for Sick Children

[ 19 ] The Complainant testified that she had a nervous breakdown at age nine or ten due to the actions of the Applicant, and that she attended at the Hospital for Sick Children as a result. In particular, I note her evidence at the preliminary inquiry on November 1, 2011, where she explains that she went to the Hospital when she was ten because of what the Applicant was doing. The Complainant stated, among other things, at p. 24 of the November 1, 2011 transcript, “That’s why I had a nervous breakdown.” The Complainant also gave evidence that she had a nervous breakdown for three years off and on around the age of 17.

[ 20 ] In my view, the records from the Hospital for Sick Children are likely relevant to ascertain if, around the time of the alleged events, the Complainant had connected her mental health issues to the Applicant’s conduct. They are also likely relevant to the unfolding of the narrative, considering the contemporaneous nature of her attendance at the hospital. The Complainant turned ten in September 1980. Given the uncertainty throughout her evidence with respect to dates and her evidence with respect to nervous breakdowns, I am of the view that the relevant period for the records from the Hospital for Sick Children encompasses the entire time frame of these allegations, namely January 1, 1980 to December 31, 1987.

Records held by the Ontario Disability Support Programs and Canada Pension Plan

[ 21 ] It is the Complainant’s evidence that she first received ODSP in 1989 and CPP in 1994, and that on the application form for each benefit, she indicated that the Applicant raped her. However, her evidence with respect to the ODSP was slightly more detailed than her evidence with respect to the CPP.

[ 22 ] With respect to the ODSP, the Complainant stated at the preliminary inquiry on November 1, 2011, at p. 25 of the transcript, “’89 and ’87 when I had a nervous breakdown after when I was 17 years old, they put me on Ontario Disability because this man raped me and it’s on my file on Ontario Disability. Ontario Disability knows and Canada Disability Pension. That’s why I’m on Ontario disability and disability and Canada Pension. ”

[ 23 ] Later in her evidence, the Complainant stated, at p. 40 of the November 1, 2011 transcript, “’89 when I had the nervous breakdown, and Ontario Disability knows that D.C. raped when I was eight, nine, ten. They even do an assessment on me.”

[ 24 ] In my view, there is likely relevance to the evidence regarding the ODSP benefits. It appears that those records were created either within the period covered by these allegations, or at most, some two years later. An assessment and what it revealed are logically probative to the Complainant’s credibility and the reliability of her evidence.

[ 25 ] In contrast, I am not persuaded that there is likely relevance in the CPP records, which were apparently created some seven years after the alleged incidents ended. There is no suggestion that there was any assessment, but rather, on the evidence it appears that the Complainant simply informed CPP of the alleged rape by the Applicant. As indicated, s. 278.3(4) lists a number of factors that, on their own, are not sufficient to establish that the record is likely relevant to an issue at trial or the competence of a witness to testify. Paragraph (e) lists the assertion that the record may relate to the credibility of the Complainant. In my view, an order for production of the CPP records in this case would violate s. 278.3(4)(e).

Records held by Albany Medical Clinic and Sherbourne Health Centre

[ 26 ] The references in the transcripts to the Albany Medical Clinic are limited. The Complainant indicted that she had attended the Albany Medical Clinic since the age of two, and that her family doctor there was Dr. Cranchi. There is no direct evidentiary basis from which to conclude that the Complainant received any psychiatric treatment or counselling at the Albany Clinic.

[ 27 ] However, there is an incomplete reference that Dr. Cranchi may have provided some information on at least one of the benefit applications, although it is not clear whether that was for ODSP, CPP or both.

[ 28 ] The Complainant also testified that, “My doctors know about it. Everybody knows about it. I told my doctor when it was – when I was 12 years old, 11 years old.” Given the Complainant’s evidence as to the series of nervous breakdowns she had, the reference to Dr. Cranchi’s involvement with at least one of the benefit forms, and the reasonable inference that the Complainant’s family doctor would likely be privy to information about the Complainant’s nervous breakdowns, it is reasonable to conclude that there is some likely relevance with respect to the records from the Albany Medical Clinic for the purpose of challenging the Complainant’s credibility and reliability, and to assist with the timeline of the events. As stated by McLachlin and Iacobucci J.J. in R. v. Mills , 1999 637 (SCC) , [1999] 3 S.C.R. 668 , at para. 137 , “Where there is a danger that the accused’s right to make full answer and defence will be violated, the trial judge should err on the side of production to the court.”

[ 29 ] In contrast, according to the Complainant’s evidence, she has attended the Sherbourne Health Centre since 2005, when she was 35 years old. In this regard, I repeat the comment made with respect to the records at the Clarke Institute. The timing between the creation of any records and the alleged offences is too remote.

[ 30 ] In sum, I am of the view that there is likely relevance in three sets of records sought:

1. The records relating to the Complainant held by the Hospital for Sick Children;

2. The records relating to the Complainant held by the Ontario Disability Support Program; and

3. The records relating to the Complainant held by the Albany Medical Clinic.

[ 31 ] The Hospital for Sick Children records are limited to the period of these allegations, that is, January 1, 1980 to December 31, 1987. There is no evidence to suggest that the Complainant attended the Hospital for Sick Children before the onset of the nervous breakdown when she was nine or ten.

[ 32 ] The records at the Albany Medical Clinic that predate these allegations may be relevant to challenging the Complainant’s assertions that all her mental health issues are attributable to the Applicant. The production of these records is limited to the period from September 1, 1972 to December 31, 1989, consistent with Complainant’s evidence as to when Dr. Cranchi started seeing the Complainant, and to when she would have assisted with the ODSP application.

[ 33 ] The ODSP records are limited to the period from January 1, 1987 to December 31, 1989, consistent with the Complainant’s evidence as to when that application and assessment were made.

[ 34 ] Having made the determination of likely relevance of these particular records, I must also determine if production is necessary in the interests of justice.

[ 35 ] Section 278.5(2) sets out a series of factors to be considered in deciding whether a document should be produced. These are:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society’s interest in encouraging the reporting of sexual offences;

(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

[ 36 ] Although the legislation provides that the trial judge shall take the above factors into account, the majority in Mills , at para. 134 , held that an in-depth analysis of each factor is not necessary:

s. 278.5(2) does not require that the judge engage in a conclusive and in-depth evaluation of each of the factors. It rather requires the judge to “take them into account” – to the extent possible at this early stage of proceedings – in deciding whether to order a particular record produced to himself or herself for inspection. Section 278.5(2) serves as a check-list of the various factors that may come into play in making the decision regarding production to the judge. Therefore, while the s. 278.5(2) factors are relevant, in the final analysis the judge is free to make whatever order is “necessary in the interests of justice” – a mandate that includes all of the applicable “principles of fundamental justice” at stake.

[ 37 ] These offences are alleged to have occurred many years ago, and the Complainant claims that her mental health issues flow directly from these offences. Whether or not that information was relayed to a health professional in a timely manner is significant to the Applicant, as it is reasonable to anticipate a defence that would advance the theory that the there is no nexus between the Complainant’s mental health and the Applicant’s conduct, as there was no such conduct. As well, to the extent that these records can assist with what happened and when it happened, that too is necessary for the Applicant to mount his defence. This is especially the case since the Complainant’s age at the time of any sexual assault is an essential element on the issue of consent.

[ 38 ] I am also of the view, for the reasons expressed, that there is high probative value in the records that will be disclosed. While I recognize the subjectivity of counselling records, the Complainant has repeatedly asserted that her mental health problems can be laid at the feet of the Applicant. The subjectivity to which much of the case law refers relates to a professional who records an individual's reactions or psychological state. In my view, this can be distinguished from a professional who records the Complainant’s narrative and her attribution of issues to the Applicant.

[ 39 ] As well, while I appreciate the high expectation of privacy in the records sought, I note that the Complainant introduced the issue of her counselling and her psychological issues. In particular, given the Complainant’s evidence that the Applicant is the sole reason for her mental health issues, it follows that there should be no significant peripheral content that would violate her reasonable expectation of privacy in the records that will be produced to the court.

[ 40 ] Similarly, there is no suggestion that the records are sought to perpetuate the discriminatory belief that victims of sexual abuse are inherently unreliable or not credible. As stated, the records are sought to explore the Complainant’s assertion that all her problems can be traced to the Applicant and to assist with the account of what occurred and when it occurred.

[ 41 ] Finally, I appreciate the potential prejudice to the dignity and privacy of the Complainant, society’s interest in the reporting of sexual offences, and the obtaining of treatment by complainants. There is no issue that the Complainant has undergone many years of therapy to deal with what she alleges the Applicant did. However, many of the records originally sought will not be produced, and most importantly, no records will be produced where there is an ongoing therapeutic relationship. As well, the records to be produced are not for an unlimited time period, but rather, are for time-limited periods that accord with the Complainant’s evidence.

[ 42 ] As stated at para. 138 of Mills , “Where the record sought can be established as ‘likely relevant’, the judge must consider the rights and interests of all those affected by production and decide whether it is necessary in the interests of justice that he or she take the next step of viewing the documents. If in doubt, the interests of justice require that the judge take that step.”

[ 43 ] Accordingly, as for these reasons, I am of the view that the following records shall be produced to the court as they are both likely relevant and necessary in the interests of justice. They will then be reviewed in order to determine whether they should be produced to the Applicant.

1. The records relating to the Complainant held by the Hospital for Sick Children, for the period from January 1, 1980 to December 31, 1987;

2. The records relating to the Complainant held by the Ontario Disability Support Program for the period from January 1, 1987 to December 31, 1989; and

3. The records relating to the Complainant held by the Albany Medical Clinic for the period from January 1, 1972 to December 31, 1989.

Reasons on Stage 2 of Application

[ 44 ] Further to the reasons set out above, I have now reviewed the records referred to in paragraph 43 above.

[ 45 ] I note firstly that the bulk of the records provided to me from the Albany Clinic were outside of the period that I have specified for review. I did not review these documents, once I ascertained that they were dated after December 31, 1989.

[ 46 ] As well, the entire box of documentation from ODSP was for a period later than December 31, 1989, and again, that material was not reviewed by me.

[ 47 ] In the records for the Hospital for Sick Children and those records of the Albany Clinic within the relevant period, I have found no references to suggest that the Complainant indicated that Applicant was the cause of the her nervous breakdowns and other mental health issues, and no information that will inform the court as to the unfolding of events. While there are references to various mental health issues, the production of those records would be only to prove a negative , namely the absence of any stated or inferred nexus between the mental health issues and the Applicant.

[ 48 ] As counsel agreed at the hearing of this application, this matter will be dealt with by an agreed statement of facts. That statement should indicate that, based on my review of the records, there is nothing in the records to indicate that the Complainant stated or inferred that the Applicant was the cause of her nervous breakdowns or other mental health issues, and that there is nothing in the records to link the Applicant to the cause of the Complainant’s nervous breakdowns or other mental issues. Further, it should indicate that based on my review, there is nothing in the records that will assist with establishing the timeline of events.

[ 49 ] As stated, this procedure will enable the Applicant to challenge the Complainant on any assertions made with respect to her nervous breakdowns and other mental health history, and will respect the sensitivity of that mental health history.

[ 50 ] The envelope marked Sick Kids Records-paginated will be resealed and marked as Exhibit 1. The package marked ODSP records will be resealed and marked as Exhibit 2. The envelope marked Albany Health Clinic-paginated will be resealed and marked as Exhibit 3. The duplicate (non-paginated) materials that were filed will continue to be sealed and will be marked as Exhibit 4. These sealed packages will be retained until the later of either the expiration of the time for any appeal in this matter, or the completion of any appeal in this mater. At that time, the records shall be returned to the Hospital for Sick Children, the Ontario Disability Support Program and the Albany Clinic respectively.

CROLL J.

Released: December 12, 2012

COURT FILE NO.: 12-30000023
DATE: 20121212

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – D.C. Applicant/Accused

THIRD PARTY RECORDS APPLICATION CROLL J.

Released: December 12, 2012